Examination of Child Witnesses under Section 311 CrPC

Source: Supreme Court 

Why in News? 

The bench of Justices Vikram Nath and Augustine George Masih in the case of Mayankkumar Natwarlal Kankana Patel & Anr. v. State of Gujarat and Anr. (2025) set aside the High Court order that had permitted the prosecution to examine a minor child as a witness at an advanced stage of trial under Section 311 of the Code of Criminal Procedure, 1973. 

What was the Background of Mayankkumar Natwarlal Kankana Patel & Anr. v. State of Gujarat and Anr. (2025) Case? 

• The Appellant and the deceased were married in 2010, and their daughter Aashvi was born in 2013. 
• On 1st December 2017, the deceased's father (complainant) lodged an FIR for offences under Sections 498A, 306, 323, 504, 506(2) and 114 of the Indian Penal Code, 1860 and Sections 3 and 7 of the Dowry Prohibition Act, 1961. 
• The FIR alleged that the deceased committed suicide on 5th November 2017 by hanging herself with a dupatta, nearly one month before the FIR was registered. 
• It was alleged that the accused had subjected the deceased to mental and physical cruelty in connection with demands for money for purchase of a car, house, and motorcycle. 
• The appellant was also alleged to have had an extra-marital relationship, verbally abused the deceased, and threatened her, thereby driving her to commit suicide. 
• A chargesheet was filed on 23rd February 2018, charges were framed, and the trial commenced. 
• After examination of 21 prosecution witnesses, the prosecution filed an application dated 6th September 2023 under Section 311 CrPC seeking permission to examine the minor daughter Aashvi as a witness. 
• The application claimed that the child was present in the house at the time of the incident when she was approximately 4 years and 9 months old. 
• The Trial Court rejected the application, noting that neither the FIR nor statements recorded during investigation mentioned that the minor child was present at the time of the incident. 
• The Trial Court observed that despite a delay of nearly one month in lodging the FIR, no such fact was disclosed, and considering the tender age of the child and unexplained delay, declined permission. 
• The prosecution approached the Gujarat High Court, which set aside the Trial Court's order and permitted examination of the minor witness. 

What were the Court's Observations? 

The Supreme Court held that the High Court was not justified in interfering with the order of the Trial Court as the respondents failed to establish that examination of the minor witness at this belated stage was essential for the just decision of the case. 

Key Grounds for the Decision: 

No Material Evidence of Child's Presence: 

• There was no material on record to substantiate the claim that the minor child was present at the time of the incident. 
• The FIR, statements recorded during investigation, and the testimony of the complainant did not disclose such presence. 
• The assumption that she was an eyewitness was speculative, as at best it suggested the child was in the house and not in the room where the incident occurred. 

Tender Age and Memory Reliability: 

• The child was of very tender age at the time of the incident, and more than seven years had elapsed since then. 
• The Court noted that memory at such a young age is vulnerable to distortion and external influence. 
• The fact that the child had been residing with her maternal grandparents throughout this period raised a reasonable apprehension of tutoring. 
• This significantly affected the reliability and evidentiary value of her proposed testimony. 

Advanced Stage of Trial: 

• The application under Section 311 CrPC was filed after examination of 21 prosecution witnesses and at an advanced stage of trial. 
• Though the power under Section 311 is wide, it is to be exercised sparingly and only when the evidence sought is indispensable for arriving at the truth. 
• The present case did not satisfy this requirement, and allowing examination would only protract the trial and cause prejudice to the accused. 
• The Court restored the Trial Court's order dated 30th March 2024 and directed the Trial Court to proceed with the trial in accordance with law.

What is Section 311 of CrPC (Section 348 of BNSS)? 

Core Provision: 

• Empowers Court to summon material witnesses and examine them at any stage of inquiry, trial, or proceeding. 
• Court can summon any person as witness, examine persons present (even if not summoned), or recall and re-examine already examined persons. 

Two-Part Structure: 

• First Part ("may") - Discretionary power allowing Court to decide whether to call witnesses. 
• Second Part ("shall") - Mandatory obligation when evidence is essential for just decision of the case. 

Scope: 

• Words "any court" and "at any stage" extend wide discretion to the Court. 
• Supreme Court confirmed this discretion is vast and cannot be restricted (Mohanlal Shamji Soni v. Union of India, 1991). 
• Purpose is to determine truth for just decision (Manju Devi v. State of Rajasthan, 2019). 

Objectives: 

• Provides opportunity for accused and prosecution to present their case. 
• Prevents failure of justice. 
• Ensures fair trial. 

Importance: 

• Upholds "innocent until proven guilty" principle. 
• Follows "Audi alteram partem" (hear the other side) rule. 
• Ensures fair trial for all parties. 

Guiding Principles: 

• Evidence must be essential for just decision of the case. 
• Should be used to determine truth and obtain proper proof. 
• Court must be satisfied examination will ensure justice. 
• Liberal approach to rectify errors in evidence presentation. 
• Fair opportunity must be provided to accused. 
• Must be exercised judiciously, not arbitrarily. 
• Not to fill lacunae in prosecution case. 
• Should prevent serious prejudice to parties. 
• Application requires valid and strong reasons. 
• Opportunity for rebuttal must be provided to other side. 

Provision in BNSS: 

• Section 311 CrPC is now codified as BNSS Section 348 - Power to summon material witness or examine person present. 
• Any Court may, at any stage of inquiry, trial or proceeding, summon any person as witness, examine any person in attendance (though not summoned), or recall and re-examine any person already examined. 
• Court shall summon and examine or recall and re-examine any person if their evidence appears essential to the just decision of the case.